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JUDGMENT
Phahlamohlaka AJ
Introduction
[1] This is an application for the eviction of first a nd respondent s and all other occupiers
who are in occupation of Erf 2494, Eldoraigne Extension 35, City of Tshwane, Registration
Division JR, held under title deed T70371/2021 , situated at number 10 Jeanette Nook,
Eldo Glen, Eldoraigne, Gauteng Province.
[2] The application is opposed by the first and second respondents (“the respondents”) ,
who filed a counter application. In the counter application the respondents are seeking an
order the following terms:
2.1 Interdicting the applicant from disposing of, selling, ceding or encumbering
the property situated at Erf 3494, Eldoraigne Extension 35, City of Tshwane
Metropolitan Municipality, Registration Division J.R. , held under Title Deed
number T70371/2011, situated at number 10 Jeanette Nook, Eldo Glen,
Eldoraigne, Gauteng Province, pending the finalization of the action that will
be instituted by the respondent s for specific performance ;
2.2 Alternatively , acknowledgement and fair accounting of the payments made
to date are provided, a fair and reasonable price is set, and that the
respondents are afforded a right to 1st refusal to purchase the property ;
2.3 Costs .
2.4 Furth er and /or alternative relief.
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Factual background
[3] During November 2012, the applicant and the respondents proposed an installment
sale agreement in terms whereof the respondents would p urchase the applicant ’s property.
[4] The following factors are important to take note:
4.1 A written agreement was proposed, drafted, and provided to the
respondents , who signed it ;
4.2 The applicant never signed the agreement ;
4.3 The agreement was never recorded by the Registrar of Deeds in terms of
the provisions of the Alienation of Land Act , 68 of 1981 (“the Act”); and
4.4 The purchase price was not paid in the required 60-month period in terms of
the Act.
[5] The applicant , therefore , contends that in terms of the Act, the agreement is void ab
initio.
The Applicant’s case
[6] The applicant contends that , in August 2021, the applicant’s attorney of record
addressed a letter to the respondents in which they were informed that the agreement is
void, cancelled , and that the te nancy is unlawful. Furthermore, the respondents were
informed that all the proceeds that have been paid by them to the applicant will be held in
trust pending the finalization of the action proceedings.
[7] As a conse quence , the applicant cont ends that the respondents have been in
unlawful occupation of the immovable property since September 2021. This is so ,
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according to the applicant , because the respondents were indebted to the applicant in the
amount of approximately R475 500.00 in November 2017 and have made little to no
payments since then whilst remaining in unlawful occupation of the property.
The respondents ’case
[8] The respondents contend that the parties were introduced to each other in 2012. A
written agreement of the sale of the property was drafted on the applicant’s instance , which
the respondents signed. The respondents took occupation in December 2012. On the
applicant's own v ersion, as expressed to the respondent s, the agreement was signed by
him. The applicant collected payment s of R 750,000.00 and R 150,000.00 , and thereafter
several installments by the respondents under the agreement.
[9] The respondents have instituted an application to have th at agreement of sale
declared valid under case number 2023 - 107954, in the same court. The application is still
pending. The respondents have also brought a counter application for interdictory relief,
pending the decision as to whether the agreement should be enforced.
[10] The respondents , therefore, contend that they have highlighted a dispute of fact,
yet the applicant has chosen to proceed on motion. The respondents further submitted that
the application should be dealt with in terms of the trite principles laid down in the matter
of Plascon -Evans P aints (TVL) Ltd v Van Rieebeck Paints (Pty) Ltd1(“the Plascon -Evans
rule”), by considering whether the applicant would be entitled to the relief claimed on the
facts stated by the respondent s, read with the admitted facts in the applicant's affidavit .
Issues for determination.
[11] The issue s to be determined are whether the respondents are , in fact , unlawfully
occupying the applicant’s property and whether the respondents have raised a dispute of
1 (53/84) [1984 ] ZASCA 51; [1984] 2 ALL SA 366(A)
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the interdictory relief.
The legal p osition
[12] Section 4 (1) of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act,19 of 1998(“PIE Act”) provides that notwithstanding anything to the contrary
contained in any law or the common law, the provisions of this section apply to pr oceedings
by an owner or a person in charge of land for the eviction of an unlawful occupier.
[13] Subsection 1(xi) of the PIE Act defines an unlawful occupier as a person who
occupies land without the express or tacit consent of the owner or person in charge, or
without any other right in law to occupy such land, excluding a person who is an occupier
in terms of the Extension of Security of Tenure Act , 1997, and excluding a person whose
informal right to land, but for the provisions of this Act, would be protected by the provisions
of the Interim Protection of Informal Land Rights Ac t, 1996 (Act No . 31 of 1996).
[14] In the case of the Plascon -Evans case (supra ), Corbett JA said it is correct that
where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a
final order, whether it be an interdict or some other form of relief, may be granted if those
facts are averred in the applicant ’s affidavits which have been admitted by the respondent,
together with the facts alleged by the respondent, justify such an order. The power of the
Court to give such final relief on the papers before it is , however , not confined to such a
situation . In certain instances, the denial by the respondent of the fact alleged by the
applicant may not be such as to raise a real, genuine , or bona fide dispute of fact.
Discussion
[15] It is common cause that the applicant is the owner of the property in question. It is
further common cause that the applicant and the respondents proposed an agreement of
sale in November 2012, and pursuant thereto , the respondents took occupation of the
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property. It is further common cause that as a result of the agreement , the respondents
paid a large sum of money to the applicant in hono ur of the agreement to purchase the
property in question. The respondents, however, could not keep up with payments, and
the agreed purchase price was not paid in full as per the agreement between the applicant
and the respondents.
[16] The applicant does not dispute being paid money, although the amount is in dispute.
In the replying affidavit, the applicant makes the following concessions :
16.1 That an agreement was used for the applicant to sell the property to Moosa
and the second respondent ;
16.2 That the agreement was drafted by the applicant's attorneys of record and
provided to the first and the second respondent (my emphasis) ;
16.3 The agreement was returned to the applicant’s attorneys of record after the
respondents signed the agreement. The agreement was not signed by the
applicant ;
16.4 The agreement makes provision for , amongst others , payment of
installments which exceeded the allowable period s tipulated in the Alienation
of Land Act, 68 of 1981 (“the Act”), and for a period within which the property
had to be registered in the name of the respondents ;
16.5 The agreement was not recorded in accordance with the provisions of the
act; and
16.6 The respondent s have made several installments towards the applicant .
[17] Although the applicant concedes that several payments were made towards him,
the applicant contends that through a letter from his attorneys of record , the right afforded
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to the respondents to occupy the property was cancelled . The applicant does not make it
clear what the payments made to him by the respondents were meant for , but argued that
the agreement never came into being , and therefore , it is void ab initio .
[18] This court cannot ignore the fact that the respondents have approached the court
to seek an order declar ing the agreement valid. The applicant has not disputed this ,
although the application was instituted after the current application. However, the
respondents filed a counter application in which they indicated that they would apply for
the agreement to be declared valid .
[19] The Constitutional Court in Botha and Another v Rich N.O and Others2 had to
determine whether the respondents were obliged, in terms of section 27 (1) of the
Alienation of Land Act, to register the transfer of the property in the name of the first
applicant after more than half of the purchase price of the immovable property had been
paid. The Constitutional Court in Botha ’s case held3:
“…granting cancellation - and therefore, in this case, forf eiture- in circumstances where
three -quarters of the p urchase price has already been paid would be a disproportiona te
penalty for the br each . In their application for cancellation the Trustees did not properly
address the disproportionate burden their claim for relief would have on Mis. Botha. They
took the view that the question of forfeiture and restitution was independent of , and logically
anterior to, the question of cancellation. That was a fundam ental error. The fairness of
awarding cancellation is self-evidently linked to the consequences of doing so. The
Trustees ’ stance therefore meant that they could not justify th is Court’s awarding the relief
they sought. In view of the above the cancellation application must fail. ”
[20] The relevance of Botha’s judgment to the current proceedings is that the
respondents in this case have paid more than half of the purchase price. After having done
so, the applicant seeks to cancel the agreement, which the applicant av ers is void ab initio .
2 CCT 89/13) [2014] ZASCA 11; 2014(4) SA 124(CC); 2014 (7) BCLR (CC) (17 April 2014)
3 On para 51
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By seeking to cancel the agreement, in my view, the applicant concedes that at least the
agreement existed, hence the need for it to be cancelled.
Dispute of fact
[21] In the replaying affidavit4 the applicant denies that an initial amount of R750,000.00
was paid by the respondents around 2012 , contending that he does not have the records
of the amount. The applicant further contends that the respondents provide no
documentary proof that the s aid amount was , in fact , paid. In the same breath , the
applicant concedes that the respondents were indeed given occupation of the property
during December 2012.
[22] In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another5, Heher JA said
the following:
‘A real, genuine and bona fide the dispute of fact exists only where the court is satisfied that
the party who p urports to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be instances where a bare
denial meets the requirement because there is no other way open to the disputing party
and nothing more can therefore be expected of him. But even that may not be sufficient if
the fact aver ed lies purely within the knowledge of the averring party and no basis is l aid
for disputing the veracity or accuracy of the averment. If the facts alleged are such that the
disputing party must necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence ) if they be not true or accurate but, instead of doing so,
rests his case on a bar e or ambiguous denial the court will genuinely have difficulty in
finding that the test is satisfied. I say ‘generally ’ because factual averments seldom stand
apart from a broader matrix of circumstances all of which needs to be borne in mind when
arriving at a decision. A litigant may not necessarily recognize or understand the nuance s
of a bar e or general denial against a real attempt to grapple with all relevant factual
allegations made by the other party.”
4 Caseline 008 -8
5 (2008) (3) SA 371
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[23] The applicant does not offer the c ircumstances under which occupation was given
to the respondents. The applicant does not even attempt to give clarity in respect o f why
the respondents have been in occupation of the property since 2012 to date. In my view,
the applicant has not succeeded in making out a case that the respondents are in unlawful
occupation of the property or that they are illegal occupants of the property.
[24] Considering the applicant ’s founding affidavit, as well as the facts not disputed in
the respondents ’ answering affidavit, a dispute of fact has been r aised . This matter cannot,
therefore, be finalized on paper , without evidence being led.
Were the respondents in unlawful occupation of the property?
[25] It is a well -established principle of our law that the applicant in motion proceedings
must make out his case in the papers. There is a serious dispute regarding the
respondents’ occupation of the property. The applicant is not candid in the founding
affidavit in respect of how the respondents came to be in occupation of the property. The
facts regarding the circumstances under which the respondents came to be in occupation
of the property are revealed by the respondents in their answering affidavit.
[26] Those facts on how the respondents occupied the property were either admitted or
not disputed by the applicant. It is my considered view , therefore, that the issue of whether
the respondents are illegal occupants of the property is in dispute , and th us a dispute of
fact arises in this regard.
Counterclaim
[27] As alluded to earlier, the respondents seek an interdict, pending the determination
of their entitlement to transfer, preserving their occupation of the property until the issue of
their entitlement to transfer of the property has been determined.
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[28] The counter claim is premised on the impugned agreement between the applicant
and the respondents. The applicant submitted that fair accounting would require
substantial evidence , which cannot be decided upon application. I agree with the applicant
on this aspect that substantial evidence is needed in this regard.
[29] I have already found that the respondents have demonstrated the existence of a
dispute of fact. I do not think it would be proper for this court to preclude the applicant from
exercising his rights to approach the courts for any relief relating to this dispute. Should
the applicant try to evict the respondents through unlawful means, the respondent will not
be without a remedy. I am , therefore , not satisfied that the respondents have made a case
for interdictory relief.
Conclusion
[30] Having found that a dispute of facts has been established, it is a well-established
principle of our law that the court has the discretion to decide whether to allow a referral
for oral evidence. The Court will therefore dismiss the application if the applicant should
have realized when launching his application that a serious dispute of fact, incapable of
resolution on the papers, was bound to develop.
[31] In these proceedings, the respondents raised genuine disputes in their answering
papers, which were confirmed by the applicant, but the applicant insisted on proceeding
with the application.
[32] In the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd6, the Court
held that where a dispute of fact is shown to exist, however, the Court has discretion as to
the future course of the proceedings. If the dispute of fact cannot properly be determined
by viva voce evidence under rule 9, the parties may be sent to trial in the ordinary way
(either on the affidavits as constituting the pleadings, or else with a discretion that
pleadings be filed ); otherwise, the application may be dismissed with costs , particularly
6 1949(3) SA 1155(T)
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when the applicant should have realized when launching his application that a serious
dispute of fact was bound to develop.
[33] The applicant, among others, contradicted itself regarding the payments he
received from the respondents. Further, the applicant contends that the agreement that
the respondents rely on is void ab initio . Whether the agreement was validly entered into
or not cannot be determined from the papers.
[34] Having found that a dispute of fact exists, it is now incumbent upon the Court to
decide on the future course of the proceedings. The applicant has persisted with the order
for eviction whilst the respondents have submitted that the application be dismissed,
alternatively that the matter be postponed sine die for the determination of the application
for the enforceability of the agreement.
[35] Rule 6(5)(g) of the Uniform Rules of Court provides as follows:
“Where an application cannot properly be decided on affidavit the court may dismiss the
application or make such order as it deems fit with a few to ensuring adjust and expeditious
decision. In particular, but without affecting the generality of the foregoi ng, it may direct that
oral evidence be heard on specified issues with a view to resolving any dispute of fact and
to that end may order any deponent to appear personally or grant leave for such deponent
or any other person to be subpoenaed to appear and b e examined and cross examined as
a witness or it may refer the matter to a trial with appropriate directions as to pleadings or
definition of issues, or otherwise.”
[36] It is my considered view that the applicant in these proceedings ought to have
realized that a serious dispute of facts was bound to develop, especially considering the
fact that the respondent took occupation of the property pursuant to the impugned
agree ment with the applicant .
Costs